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U.S. Immigration Law Inhumane to Same-Sex Couples

New Immigration Reforms Must End Discrimination against Lesbians, Gays

Thousands of U.S. citizens and their foreign same-sex partners face enormous hardships, separation and even exile because discriminatory U.S. immigration policies deprive these couples of the basic right to be together, Human Rights Watch and Immigration Equality said in a report released today.

As Congress debates immigration reforms, it must end the discrimination that lesbian and gay Americans and their foreign partners endure under U.S. immigration law. The 2000 U.S. Census estimated that in the United States there were almost 40,000 lesbian and gay couples in which one partner is a U.S. citizen (or permanent resident), and the other a foreign national. This figure does not include the many thousands of binational couples who have to hide the fact they are partners, are forced to live apart, or who have been forced to leave the United States. Under discriminatory U.S. statutes, these couples have no recognition under the law.

“Discriminatory U.S. immigration laws turn the American dream into a heartless nightmare for countless U.S. citizens and their foreign partners,” said Scott Long, co-author of the report and director of the Lesbian, Gay, Bisexual and Transgender Rights Program of Human Rights Watch. “As Congress debates immigration reforms, it should end discrimination against lesbian and gay immigrants as well as their U.S. partners.”

The first-ever comprehensive report on the issue, “Family, Unvalued: Discrimination, Denial and the Fate of Binational Same-Sex Couples under U.S. Law,” documents how U.S immigration law and federal policy discriminate against binational same-sex couples. The 191-page report documents the consequences of this discrimination and shows how it can separate not only loving partners from one another, but also parents from children. It also shows how this policy has destroyed careers, livelihoods and lives.

“Our immigration laws are undermining the traditional American values of fairness and family,” said Rachel B. Tiven, executive director of Immigration Equality. “U.S. immigration policy is designed to keep families together. But the current law targets an entire class of American families and tears them apart.”

For more than 50 years, family reunification has been a stated and central goal of U.S. immigration policy. Immigration law places a priority on allowing citizens and permanent residents to sponsor their spouses and close relatives for entry into the U.S. Although the system remains imperfect, riddled with delays that rising anti-immigrant sentiment only intensifies, U.S. citizens and their foreign heterosexual partners can easily claim spousal status and the immigration rights that it brings.

U.S. citizens with foreign lesbian or gay partners, however, find that their relationship is considered non-existent under federal law. The so-called “Defense of Marriage Act,” passed in 1996, declared that for all purposes of the federal government, marriage would mean “only a legal union between one man and one woman as husband and wife.” Since lesbian and gay couples are excluded from the definition of “spouse,” U.S. citizens receive no legal recognition of their same-sex partners for purposes of immigration.

Based on interviews and surveys with dozens of binational same-sex couples across the United States and around the world, the report documents the pressures and ordeals that lack of legal recognition imposes on lesbian and gay families. Couples described abuse and harassment by immigration officials. Some partners told stories of being deported from the United States and separated from their partners. Many couples, forced to live in different countries or continents, endure financial as well as emotional strain in keeping their relationships together.

“No family should be forced apart, no matter what the sex is. This is how immigration laws have affected us,” a woman in North Carolina said, describing how her Hungarian partner and their children were forced to leave the United States. “We are separated and without each other.... We just want to be together, that’s all.”

Many U.S. citizens are forced into exile in countries where their relationships are recognized. At least 19 nations worldwide provide some form of immigration benefits to the same-sex partners of citizens and permanent residents, while the U.S. still refuses. These include Canada as well as 13 European countries (Belgium, Denmark, Finland, France, Germany, Iceland, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom). On other continents, this list includes Brazil, Israel, South Africa, Australia and New Zealand.

Notably, the report details how current U.S. exclusionary policies are rooted in a long history of anti-immigrant sentiment, in which fears of sexuality have played a steady part. From the McCarthy era until 1990, U.S. law barred foreign-born lesbians and gays from entering the country. The United States is also one of the few industrialized countries that imposes a blanket ban on entry by HIV-positive individuals, a bar that reinforces irrational fears and stigma but does nothing to protect public health.

The proposed law would add the term “permanent partner” to sections of the Immigration and Nationality Act where “spouse” now appears. Thus, a U.S. citizen or permanent resident could sponsor their permanent partner for immigration to the country, just as they can now sponsor such family members as siblings, children or husbands and wives. The bill was introduced in the current Congress on June 21, 2005; it has a total of 104 cosponsors from both houses.

In addition to repealing the Defense of Marriage Act of 1996, Congress should enact reforms to U.S. immigration law to guarantee respect for the human rights and labor rights of non-citizens. These reforms should include measures that end discrimination against lesbian, gay, bisexual, transgender and HIV-positive individuals.

The Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch, which is the largest U.S.-based human rights organization, advocates against abuses based on sexual orientation or gender identity worldwide. Immigration Equality is a national organization that fights for equality under U.S. immigration law for lesbian, gay, bisexual, transgender and HIV-positive individuals.

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